Divorce represents one of the most common areas involving the interface between law and psychology. Roughly half of all marriages end in divorce, and 60 percent of those involve minor children. While the vast majority of divorces involve some degree of acrimony and conflict through the stages of separation, legal dissolution of the marriage, and post divorce regrouping, a small subset of divorces are characterized by intense levels of conflict.
Conflict can take many forms, ranging from verbal attacks to physical abuse. Conflict also can be manifest by efforts to undermine a child’s relationship with the other parent, uncooperativeness, and punitive behaviors designed to cause emotional distress in one’s estranged or former spouse. In some cases, conflict can escalate to life threatening forms of aggression, including homicide and suicide. High-conflict divorces often occupy a disproportionate amount of time for family attorneys compared with other cases and create an excessive drain on the resources of the court.
Psychologists and other mental health professionals also find themselves embroiled in such cases, either directly, when a divorcing individual or couple is seen in therapy or indirectly when a child client’s parents are involved in a bitter divorce. Psychologists may also get involved with such families in the context of performing a child custody evaluation where issues of custody, residence, visitation and financial arrangements are contested.
Since the level of conflict associated with divorce is best conceptualized as a continuum, clear estimates about how commonly divorce conflict escalates to the extreme are difficult to obtain. Maccoby and Mnookin estimate that 15 percent of divorcing couples exhibit intense conflict, whereas Amato, Loomis and Booth estimate that 30 percent of couples fall in this category.1,2 The proportion of couples that cannot resolve disputes over custody without court intervention represents another index of intractable conflict. While the vast majority of custody cases are resolved through private agreement through negotiation between attorneys or mediation, roughly five percent of couples require judicial intervention and custody/psychological evaluation of the family.
Focus on the management of high-conflict divorces is important for three reasons. First, the adverse emotional, academic and social consequences of divorce on children are well documented in research literature, especially for children whose parents are involved in a contentious, high-conflict divorce.3 These children are two to four times more likely to exhibit clinically significant emotional, behavioral and academic difficulties. Boys, regardless of age, tend to be more adversely affected by parental conflict, which they typically exhibit through externalizing behavior disorders. Girls also may be adversely affected, but are more likely to exhibit their emotional distress through internalizing disorders such as anxiety and depression. The pathogenic role of interparental conflict on children’s psychological adjustment is underscored by the fact that children generally function better in a low conflict divorced family than a high-conflict intact family. Given the prevalence of high conflict among divorcing parents, it is easy to see why children in these families are at risk for the development of psychological problems. Some research suggests that parental conflict is one of the most powerful risk factors for children’s psychological difficulties.4
Second, divorcing parents who are involved in intensely conflicted divorces are also at elevated risk for development of psychological difficulties and substance abuse themselves. Whether individual psychological problems or dysfunctional interactional patterns predated the divorce or were exacerbated by it is difficult to determine. In many cases escalating marital conflict is evident well before one or both parties initiate divorce, and intense conflict is merely an extension of the interactional pattern that could be observed during the demise of the marriage. In other instances, the actual divorce process is the triggering event for intense conflict among couples with little history of such problems.
Third, high-conflict divorces place considerable strain on the family courts and pose significant management challenges to the attorneys who represent the parties. Despite trends toward methods of alternative dispute resolution and the collaborative law movement, couples in high-conflict divorces often appear more invested in keeping up the battle than in resolution. Legal avenues are sought to use in a punitive manner against their partner. These couples seek out attorneys who they believe will launch a ferocious assault on their estranged spouse and impetuously dismiss attorneys who they believe are not aggressive enough. Their litigious nature often leads them to act on feelings of being poorly represented by threatening sanctions or filing complaints with the State Bar of Texas. These clients are likely to resist sound legal advice and tend to flood attorneys and their staffs with incessant phone calls and emails. As clients, spouses in high-conflict divorces can be highly emotional and unreasonable, even in the face of proposals involving equitable settlements. While some attorneys may believe that such conflict will lead to substantial financial rewards through mounting legal fees, they often end up being unable to collect for their services or are required to go to extraordinary lengths to collect their fees.
In this article we will address ways that attorneys and mental health professionals can cooperate in management of individuals in high-conflict divorces. We will discuss how to identify such individuals and couples and discuss the mental health services that can be helpful. We will describe the various roles that mental health professionals can play in these cases, the timing of effective interventions, models of collaboration with attorneys, boundary issues associated with differing professional roles, and how the involvement of mental health professionals can in some cases adversely impact the divorce process.
Identifying the High Risk Family
While the term conflict implies disagreement between two or more people, high-conflict dyads may not include equal contributions from both parties. It may be that one parent is driving the conflict, while the other parent is suffering the consequences of the other parent’s wrath. Joan Kelly makes the distinction between bilateral and unilateral conflict and poses the following questions in determining the nature of the couple’s conflict:5
Who or what is driving the conflict?
What are each parent’s contributions to continuing hostility, disputes, and relitigation?
Has either parent disengaged with the other?
Is either parent receptive to changing his or her behavior?
Identifying the driving force of the conflict can be the first step in designing a successful intervention, both legal and psychological, for the high-conflict family.
As professionals working in the family law system, lawyers have an important role in the identification and referral of high-conflict families for appropriate intervention. Before any intervention can be initiated, one must know how to identify high-conflict couples. In the absence of any psychometrically sound measures of high-conflict in family law, researchers have identified elements, both behavioral and emotional, that characterize the high-conflict family. Johnston, Campbell & Tall presented characteristics internal to the individual that may suggest a high-conflict situation, and thus, an appropriate referral for evaluation or treatment.6 Internal elements included: a) a poor sense of autonomy beyond the marriage, b) an inability to separate the child’s needs/feelings from the parent’s needs/feelings (e.g., “your father doesn’t love us anymore”), c) a high degree of distrust, d) rigid/inflexible thinking regarding relationships and child development (e.g., a tendency to view all actions of the other parent in a negative manner), e) generalized anger towards life and members of the opposite sex, f) a sense of powerlessness (e.g., “It doesn’t matter what I do, my ex will always try to sabotage me”, “I can’t change anything”), f) a sense of unresolvable loss, g) a history of violence/abusive behavior, and h) vilification of the other parent. Johnston and colleagues also pointed to the role of mental health problems and substance abuse in the identification of high-conflict families and the need for intervention.7
Such problems may exacerbate any difficulties with the individual’s ability to get along with the other parent and with the quality of the parent-child relationship and parenting abilities. Such difficulties can also elicit fear in the child for the other parent that can add fuel to the flames of conflict. Oftentimes, individuals enmeshed in a high-conflict relationship will view themselves as the victims in the situation and have difficulty accepting any responsibility for their own behavior or acknowledging how their behavior might contribute to the conflict or problems with the children. They may exhibit very rigid “all or none thinking” and be unable to acknowledge any positive attribute in the other parent or in their parenting abilities.
In addition to individual characteristics, Johnston and colleagues identified several internal relationship characteristics of high-conflict couples.8 Such elements include: a) enmeshment with other family members, b) a poor sense of boundaries, c) high levels of competitiveness in marriage and separation, d) aggression (verbal and physical) between the parents, e) a tendency to involve the children in the couple’s disputes, and f) a pattern of alienation of the other parent.
High-conflict couples often lose sight of their children’s interests and use their child to express anger towards the other parent. This tendency is yet one example of the poor boundaries often displayed by individuals in high-conflict relationships. Treating the child as a peer, becoming competitive with the other parent in pursuit of the child’s affection and acceptance, and discussing information inappropriate for the child’s developmental level (e.g., aspects of the parental conflict, divorce proceedings, extramarital relationships) are other common examples of poor boundaries in high-conflict couples. Alienation of the other parent can range from subtle and inadvertent acts such as reassuring the child that they do not have to be scared when going to their father’s house for visitation (implying that the child should feel fear), to more overt alienating behaviors such as denigrating the other parent in front of or to the child.
External markers of high-conflict couples include: a) criminal convictions, b) involvement of child welfare agencies, c) several or frequent changes in legal representation, d) number of times a case goes to court, e) overall length of time for a case to be settled, and f) a large volume of collected affidavit material.9
In many ways, individuals in high-conflict disputes are unable to detach from the marital relationship. The continuation and exacerbation of conflict serves as a means to continue the relationship and avoid the feelings of loss and rejection often experienced as a result of the dissolution of the relationship. From a psychological perspective, this phenomenon has been described as a “negative attachment.”10
Types of Legal and Psychological Services
Once the high-conflict couple has been identified, there are a number of interventions, psychological and legal, available depending on the individual needs of each family. The appropriate timing of such interventions and issues that arise as a result of interventions administered during a legal dispute will be discussed in subsequent sections of this article. The following table provides a list of the most commonly used interventions for high-conflict families and services provided by mental health professionals in the family law context, with a brief description of each intervention.
Considerations in recommending appropriate types of service. When working with high-conflict families, it is important to determine the appropriate type of treatment and which family members should participate in each component of the intervention. The type of mental health services that are most appropriate for a given family varies across a number of dimensions, including the goals of service (treatment vs. evaluation and targets for interventions), which family members are involved, structured psychoeducational vs. individualized therapeutic approaches, single vs. multiple modalities, and referral to an appropriate provider.
Service goals. Social studies, custody evaluations and individual mental health evaluations involve assessing individual and family functioning along various dimensions. Contacts with family members are usually limited to a specific time-frame and the end result of the service is production of a report, sometimes with recommendations, regarding the specific psycholegal issue involved in the case (e.g. custody, visitation, parental fitness, etc). While involvement in the evaluation process may yield some therapeutic benefit, such approaches do not constitute mental health treatment. In fact, professional ethical requirements specifically prohibit mental health professionals like psychologists from serving in both an evaluation and treatment role in the same case.
The specific focus of the evaluation or treatment process also can vary. Some services focus on specific issues such as determination of custody, parenting, substance abuse, anger management, or specific types of parental psychopathology (e.g. depression, anxiety) whereas other services may target more broad family goals like improving family functioning, reducing interparental conflict, etc. When making a referral for mental health treatment or evaluation it is important to identify the specific family needs that must be addressed and match those needs with the most appropriate type of service.
Who participates. Mental health services may include one or multiple family members. For example in the case of custody evaluation, at a minimum information is obtained about each parental figure, each adult in a caretaker role or in residence with the child(ren), and each child. Likewise, family therapy and reunification therapy involve multiple family members who are seen in various combinations, including single individuals, couples, and larger family units. By contrast, other service types involve only a single family member (e.g. individual psychotherapy; group therapy) or only some family members (e.g., parenting education, parent coordination).
Format. Intervention programs may use a structured psychoeducational group format or employ an individualized therapeutic approach. The assumption behind the structured psychoeducational approach is that certain divorce-related material (e.g. parenting issues) may be presented didactically in an efficient time-limited group format. The individualized therapeutic approach can be tailored to the specific needs of family members, who are the primary focus of treatment, and is generally open ended and more intensive. The parenting programs that are mandated in Harris County represent a good example of the structured psychoeducational approach whereas family therapy, reunification therapy and individual psychotherapy represent the individualized therapeutic approach. While both approaches may be adapted for use with high-conflict divorces, reduction in interparental conflict may not be a central focus of intervention.
A promising structured psychoeducational approach has recently been developed to fill this gap. The Family Transitions Solutions (FTS) program was designed by the University of Houston Center for Forensic Psychology in collaboration with Children’s Legal Services of Houston, a non-profit group providing legal advocacy to children who are involved in the legal process. The FTS program was specifically designed to address the needs of children involved in high-conflict, contested divorces through their participation in an eight-session child treatment group. Children learn problem-solving skills, anger management and emotional regulation skills, and conflict avoidance skills. Additionally, parents participate in a separate, concurrent eight-session treatment group that parallels the child’s program in content and technique, emphasizing knowledge and skills to facilitate their child’s adaptive adjustment during family transition. Specific emphasis is placed on perspective taking, negotiation skills, and education on post-divorce parenting and alienation.
Evidence of effectiveness. In referring for mental health services, the quality of the program and its effectiveness is important, especially for intervention programs. In her review of the research, Kelly found that parent education programs reduced litigation, increased parent cooperation, and reduced instances of parents putting children in the middle of their conflict, especially for high-conflict couples.11 It was also noted that parent education programs that focused on skill-building seem to be the most effective. Furthermore, re-litigation rates were lower for high-conflict parents who participated in a divorce education program compared to a control group within the six- year follow-up period.12 Interventions are more likely to benefit children from divorced families if they assist in containing parental conflict, promote authoritative parenting practices, foster close relationships between children and both parents, enhance economic stability, and involve children to help them have a voice in shaping more individualized and helpful access arrangements.13
Unfortunately, there is very limited information on general effectiveness of many individualized therapeutic approaches for divorcing families. There are also questions about the specific effectiveness of services targeting families involved in very high-conflict, contentious divorces—the very ones who need services the most. Effectiveness of mental health services in such instances is certainly enhanced when family members are fully engaged in the treatment process and willing to put aside maladaptive, conflict escalation tactics to resolve issues, especially those involving children.
Single vs. multiple modalities. Depending on a family’s needs and the level of conflict, it is advisable to determine if more than one service modality is indicated. In instances involving relatively low levels of conflict, time-limited psychoeducational programs may be sufficient. In other cases, especially with families involved in high-conflict divorces, multiple treatment modalities are generally preferable. For example, for divorcing parents who suffer from emotional or substance abuse disorders, individual psychotherapy is advisable. In the absence of diagnosable emotional or substance abuse disorders, individual psychotherapy also can be helpful to assist divorcing spouses address their often intense and debilitating emotional reactions to the divorce. Since the focus of individual psychotherapy is on the target client, important family and interactional level issues are beyond the scope of treatment. In those instances, family therapy or reunification therapy may be indicated to address the emotional needs of multiple family members and involvement of a parent coordinator may help address issues specific to co-parenting.
Virtually all families who require a custody evaluation to help resolve issues of custody, residence and visitation would also profit from some combination of individual and/or family therapy in addition to work with a parenting coordinator for future conflicts that may arise. For example, Stewart recommended a differential plan for intervention depending on the level of conflict in the relationship.14 For high-conflict couples, the recommended individual therapies to help with issues of anger and loss are individual therapy for the child(ren), supervised access and exchange programs, parent coordinators to assist in resolving conflict, and external monitoring of compliance with court orders. External monitoring may be done by parent coordinators in jurisdictions where such roles are permissible. Only after these individuals address some of their issues in individual therapy is co-joint or reunification therapy recommended to improve their level of responsiveness to intervention efforts aimed at reducing interparental conflict. By contrast, in the case of couples with minimal conflict, Stewart recommended mediation services, individual and group support counseling for parents and children, and parent education programs.15
Referrals to an appropriate provider. Referrals for providers of each type of service can be obtained from a variety of sources including colleagues, the courts, local mental health associations, mental health practitioners, and local universities. When selecting a provider or program for intervention, it is important to consider the following issues: a) the qualifications and experience of the provider (e.g., do they have the necessary training to provide the service and do they have specialized training in issues relevant to divorce, conflict resolution, and children), b) the feasibility of the intervention for the client, c) whether the intervention is based on the most current knowledge/literature in the area, d) who will participate in the treatment, e) who will pay for the services, and f) how services will be sought (e.g., court-order v. voluntary participation).
Timing of Interventions
In most instances, early intervention is key for families involved in a high-conflict dispute. Early intervention efforts can prevent conflict from escalating to unmanageable levels and causing unnecessary distress to all members of the family. The longer a couple is involved in contentious relations during the divorce process, the more difficult it will be to effectively intervene and come to a successful resolution. Thus, it is important to identify these cases early in the process and develop individual intervention plans that address the specific needs of each family.
The adversarial nature of divorce often serves to escalate conflict in already contentious relationships by consolidating conflict between the parents, encouraging positional or black/white thinking, causing individuals to focus on taking sides and identifying parental inadequacies instead of strengths in the other parent, discouraging communication between parents, and diverting the focus away from the central issue of the needs of the children.16 Johnston stated, “The adversarial legal system that these disputing families enter in order to resolve their custody disputes is particularly fertile ground for this polarization and projection of blame.”17 Thus, the nature of the adversarial system in and of itself can contribute to the escalation and maintenance of high conflict.
Issues of the order of interventions and sequencing are important. As previously noted, it is usually advisable to have the parent address individual issues in individual psychotherapy prior to interventions that address conflict and co-parenting. This is especially true in cases where the parent has substance abuse problems or clinically significant psychopathology. Such problems often contribute to the conflict and cause significant discomfort and concern in the other parent. Interventions that target reducing conflict and improving the post-divorce co-parenting relationship will also be more successful when the individual first addresses issues that may interfere with his or her ability to focus on skill-building exercises. Interventions aimed at helping children cope with the divorce and their parents’ conflict also should be sought early in the process to address issues that have already surfaced and to buffer against the exacerbation of problems due to continued conflict between parents. As we discuss below, in order to avoid the ethical pitfalls of potentially damaging multiple relationships, we advise against therapists being involved in providing different modalities of treatment to different family members at the same time. Effective communication among mental health service providers also is necessary to avoid working at cross purposes.
The assignment of a parent coordinator early in the process also can benefit high-conflict families, as oftentimes such services are ordered after an extended history of conflict and entrenchment in the adversarial process when parents are least likely to benefit from such services. Kelly outlined the objectives of the parenting coordinator as implementing and monitoring compliance of parenting plans, providing quick resolution of co-parental dispute, reducing the conflict between parents, refocusing the parents on the child’s needs, improving communication and problem-solving skills of parents, providing education to parents about developmental and psychological needs of the child, providing a stabilizing presence for families and children, providing a channel of communication for children, and reducing reliance upon litigation and courts, thus interrupting the conflict escalation spiral.18 Working towards these objectives is less arduous when the parent coordinator enters into the relationship early in the divorce process.
Particularly in the context of high-conflict divorce litigation, the family law practitioner must frequently assess the need for intervention by a mental health professional and recommend the most appropriate means for addressing those needs. Family law practitioners also make decisions about intervention, either unilaterally or by agreement, with opposing counsel as the courts are often unavailable and, sometimes, unwilling to deal with these issues without the input of the mental health professional. Family law practitioners work with mental health professionals in a variety of ways, including:
1. with a client’s already-existing therapist or by referral to a therapist
2. with a child’s existing therapist or by referral to a therapist
3. with a court appointed psychologist/evaluator
4. with a parenting coordinator
5. in a Collaborative Law setting
Because an attorney’s work with mental health professionals in the family law context often raises questions about confidentiality and the potential loss of privileged communication, questions are raised about what is classified as confidential and what can be ordered by a court to be disclosed. It is essential for a family law practitioner to know the boundaries of communication with a client’s mental health professional in order to protect that client’s privacy rights. The family law practitioner should be prepared to protect against an opposing party’s attempts to access confidential information with the use of specific rules of evidence, the Health and Safety Code, and HIPAA. Compelling a party to participate in therapy without the protection of confidentiality and with the threat that anything revealed in therapy may be disclosed in the course of litigation undermines the process and will make the therapy ineffective.
Collaboration with a client’s already-existing therapist or referring the client to a therapist. Frequently in family law it becomes apparent that a client needs assistance in addressing mental health issues—either existing or brought on by the divorce—with addiction, anger management problems, depression, anxiety or other mental health needs. Working with a client’s already-existing mental health professional or referring a client to a mental health professional requires the attorney to perform a balancing act between making decisions benefiting the welfare of the client and making strategically sound decisions in the context of the litigation. In referring a client, family law practitioners must focus more on seeking out reputable practitioners that specialize in addressing the specific needs of the divorcing client and less on finding a “hired gun” who will say whatever is needed to assist in the litigation. “Rambo” tactics work, but they often only serve to destroy the families that the family law practitioner, as an officer of the court, should strive to protect.
A mental health professional, attorney and court can also work together to determine non-harmful methods of disclosure of a portion of a patient’s mental health information. Possible alternatives include using a narrative or summary prepared by the mental health professional, as set out in Chapter 611 of the Health and Safety Code; providing for court-ordered psychological/custody evaluation that allows the court-appointed evaluator to make limited clarification inquiries of the mental health professional relative to the summary; and ordering in camera inspection of records after redaction.
Collaboration with a child’s existing therapist or referral to a therapist. In order to protect and facilitate a child’s relationship with a therapist, attorneys should work toward an agreement that a child’s counseling is not open to the litigation process. Particularly in high-conflict cases, a child will need a port in the storm of litigation between the parents. But that child will be unable to trust a mental health professional who is compelled to reveal to the parents, their attorneys and to the court what should be confidential communication. In these cases parents are usually focused on a “scorched earth” plan of attack without considering the long-term effects of dragging their children with them through the process. These parents are willing to use anything, including the confidences shared by a child in therapy, in order to “win.” As officers of the court, family law practitioners have to maintain focus and dedication to the best interest of the child. The ruling in Jones v. Abrams, 35 S.W.3d 620 (Tex. 2000) supports the mental health practitioner’s refusal to disclose confidential information obtained from children if the disclosure of such information is deemed to be potentially damaging to the child’s emotional well-being.19
Collaboration with the court-appointed psychologist/evaluator. In the context of working with a court-appointed evaluator, the family law practitioner should be well-informed of the standards of practice to which the evaluator will be held, the testing to be conducted and the admissibility of their testimony. The Model Standards of Practice for Child Custody Evaluation provides a guideline which, among other things, details the sources of information to be used by such an evaluator. These guidelines stress that child custody evaluators shall assess each parent and all adults who perform a caretaking role or live in the residence with the children; individually assess each child who is the subject of the evaluation; assess the relationships between each child and all adults who perform caretaking roles or live in the residence with the child; and conduct at least one in-person interview with each parent and other adults who perform a caretaking role and/or are living in the residence with the child.20 Collateral sources of information such as friends, relatives, employers, medical records and others also are crucial to a thorough evaluation.
Clients cannot be left alone to navigate the evaluation process. It is essential that the attorney facilitate and encourage the client’s and child’s appointments by providing clear instructions to the client; court orders and parameters of evaluation to the appointed mental health professional; contact information for the client, the evaluator and collateral witnesses; and appropriate documents with additional, valid sources of information to the mental health professional. It is important for the attorney to acknowledge the evaluator’s position as an objective third party in the evaluation process and the evaluator’s inability to discuss details of the evaluation with the attorney prior to submitting his or her final report to the court. In most cases, the evaluator will require that all substantive communication with attorneys during the evaluation process be conducted with representation from both sides present during the communication to ensure that all parties are privy to the same information.
Collaboration with Parenting Coordinator. Parenting coordination is the statutorily provided-for process by which trained mental health professionals assist parents in resolving various issues related to their children without the necessity of returning to court.21 Parenting coordination was designed specifically to deal with high-conflict cases, both during litigation and post-litigation. It is a confidential process protected from use in litigation in the same way other forms of alternative dispute resolution are protected. Because parenting coordination is a confidential process, attorneys should feel comfortable in encouraging clients toward the proper purpose in working with parenting coordinators: resolving conflict and addressing mental health needs, not posturing for litigation.
Collaborative Law is another statutorily provided-for process that often requires collaboration between attorneys and mental health professionals.22 Collaborative Law forces all involved to focus on problem solving and a shared commitment that they will work together as a team, which often includes a mental health professional. In this alternative to the adversarial litigation process, divorcing couples explicitly agree that they will work toward settlement without resorting to litigation. Mental health professionals act as facilitators to communication throughout the process and they develop strategies for addressing concerns of the parties. Some families are too entrenched in high conflict to work within the collaborative law framework. However, the inclusion of a mental health professional in the process can make this a viable alternative to litigation even for these families.
Boundaries of professionals
While the involvement of multiple professions from diverse disciplines can facilitate the effective resolution or minimization of conflict in families, it can also be a source of much confusion, miscommunication and ethical pitfalls. It is important for each professional involved in a case to have extensive knowledge of the regulations and ethical codes that govern their profession as well as the law relevant to their involvement in family court matters. Often, the ethical standards and regulations of each discipline differ, which can cause significant conflict and misunderstanding among professionals on a case. Thus, it is critical that each professional clearly establish his or her role in the case and the boundaries of that role. Many times, in the pursuit of efficiency, professionals will attempt to perform multiple roles on a case. For example, a custody evaluator might try to provide counseling upon completion of his or her report, or an individual therapist might offer “expert” testimony regarding custody and visitation issues. In such cases, the professional is operating outside the boundaries of their original role in the case.
Ethical dilemmas often arise when the professional tries to move from one role into a new role with different goals. For instance, when a professional is treating a client in individual therapy, he or she forms an alliance with that client and advocates for his or her client’s best interests. In contrast, a professional who has been asked to perform a custody evaluation of a family is operating as an objective third party and is seeking information that will assist the court in making decisions about the best interest of the child. It would be inappropriate for a professional with a prior “advocacy” relationship with the client to perform such an evaluation since the prior relationship may impede his or her objectivity and his or her conclusions in the case might have a negative impact on the therapeutic relationship with their client if the findings put their client in a negative light.
The American Psychological Association’s Ethical Principles and Code of Conduct stipulate that psychologists “take reasonable steps to avoid harming their clients/patients, students, supervisees, research participants, organizational clients and others with whom they work, and to minimize harm where it is foreseeable and unavoidable,” and that psychologists refrain “from entering into a multiple relationship if the multiple relationship could reasonably be expected to impair the psychologist’s objectivity, competence, or effectiveness in performing his or her functions as a psychologist, or otherwise risks exploitation or harm to the person with whom the professional relationship exists”.23 The Texas Licensing Rules and Regulations for Psychologists also note that a treatment provider is prohibited from serving as both a forensic evaluator and therapist on the same case.24
Communication between professionals involved in a case is key to the efficient and successful resolution of a case, but the professionals involved must understand and respect the boundaries of each profession. For instance, a parenting coordinator may be working with a family that has been ordered to a custody evaluation and may ask the custody evaluator for preliminary recommendations on how to address the needs of the family. It would be ill-advised for the evaluator to offer such recommendations as they are not operating in an intervention capacity in the case and should resist offering opinions and “advice” before completing their evaluation. Premature disclosure of information may bias the evaluator’s opinion or cause them to adhere to opinions that they have publicly endorsed, even when presented with evidence to contradict their initial impressions.
Mental health professionals also can unintentionally promote conflict in their work with clients. Given their role as client advocate, individual therapists may inadvertently reinforce the often-distorted and self-serving perceptions of divorcing clients that they see in therapy. Empathy with clients’ emotional pain can easily be misread by clients as support for their belief that their partner is completely to blame for all the relationship problems. This “good guy/bad guy” mentality can therefore undermine effective cooperation between divorcing spouses and work against a client’s acceptance of their contribution to past and current problems. In their study of mediating families, Johnston and Campbell noted, “Coalitions with mental health counselors were germane to some particularly entrenched disputes.
Some therapists, who saw only one of the parents, encouraged uncompromising stands, reified distorted views of the other parent, wrote recommendations, and even testified on behalf of their client with little or no understanding of the child’s needs, the other parent’s position, or the couple/family dynamics. In some cases, mental health counselors of each parent squabbled between themselves, taking on the characteristics of the disputing parties.”25 It is important to note that the Texas Licensing Rules and Regulations prohibit mental health practitioners from rendering “a written or oral opinion about the psychological characteristics of an individual without conducting an examination of the individual unless the opinion contains a statement that the licensee did not conduct an examination of the individual.”26
Adverse Impact and Mental Health Involvement
A family law practitioner’s decision to engage a mental health professional in the divorce process must be weighed against the possible negative impact of that engagement. For example, a request that the court appoint a mental health professional as evaluator usually results in months-long delays of final resolution. That delay can be caused by the evaluator’s lack of communication with the attorney or court regarding a party’s failure to participate, the evaluator’s schedule, or by the attorney’s failure to follow through with the client. Results from an evaluation can be less relevant if a significant amount of time passes between the precipitating events, evaluation and testing, and the time of the final report and recommendations. It is important, then, for the court, attorneys and mental health professional to arrive at a realistic schedule for initial testing, appointments, submission of collateral information to the mental health professional, and the final report to the court.
Often a party’s request for a mental health evaluation is actually made for the purpose of delay and not because there is a reasonable need for such an evaluation. Attorneys will often rely on the mental health professional’s back-log of work to postpone a trial and to buy time for further discovery, additional temporary orders or to leave in place an advantageous temporary order.
The cost of evaluation, court-ordered therapy, intensive co-parenting counseling or parenting coordination can also have a negative impact on the divorce process. The financial commitment can be taxing on all parties or may be encouraged by one party in an attempt to “starve out” the other party. Vigorous requests by a litigant for in-depth evaluations or therapy that is costly and time consuming, knowing that the other party cannot afford the financial or time commitment, can serve to raise the level of conflict.
The recommendations of a mental health professional can also raise the level of conflict by further entrenching the positions of the parties and by empowering the party with the more positive evaluation. Some parties go so far as to share the results of these evaluations with family members, employers and other third parties, further polarizing the parties and raising the level of conflict. The family law practitioner can mitigate this by requesting court-ordered confidentiality agreements that prohibit the use of evaluations, recommendations and testimony of the mental health professional in any way outside of the pending litigation.
Finally, family law practitioners and their clients are often presented with ambiguous recommendations that provide little direction or assistance to the court or parties toward resolving the areas of conflict. Once engaged in a high-conflict case, a mental health professional must be prepared to make clear findings and recommendations or risk having wasted the time and resources spent on the process.
High-conflict divorces represent an arena where effective collaboration between family lawyers and mental health professionals is clearly indicated. Legal considerations must be addressed in concert with the often-complex array of psychological issues that plague these high-conflict families. Operating in isolation, lawyers and mental health professionals may actually exacerbate an already acrimonious divorce, place both the children and divorcing spouses at greater risk for a variety of serious emotional and behavioral problems, and work against legal resolution of the case. Dealing with high-conflict divorcing families exemplifies the 80/20 rule. Twenty percent of the divorces occupy 80 percent of resources of the court, attorneys and mental health professionals. An array of helpful mental health resources is available to assist with cases that are scalable in terms of psychological and legal needs of the families. Knowing the differences among the various types of mental health services is important in determining which forms of evaluation and treatment, and in which sequence and combination, will help optimize the matching of mental health resources and family need. Careful delineation of the professional boundaries between family lawyers and mental health professionals also will help head off preventable difficulties that exacerbate conflict as opposed to help reduce it. We believe that awareness of the differences in perspective between attorneys and mental health professionals and effective communication among all professional parties is the best way to help families make the transition through what is arguably the most difficult and emotionally taxing situation they will ever face.
Tonya Inman, Ph.D.,is research
assistant professor at the University of Houston and assistant director of the Center for Forensic Psychology.
Patricia N. Carter is board certified in family law and is a partner with Short, Carter & Morris, LLP.
John P. Vincent, Ph.D., ABPP,is professor, director of doctoral training
in clinical psychology, director
of the Center for Forensic Pshychology at the University of Houston, and clinical faculty member at Baylor College of Medicine. He is board certified in clinical psychology, directs the forensic division of the Texas Psychological Association, and specializes in clinical and forensic psychology. He can be reached at 713-790-1330 or firstname.lastname@example.org.
1. Maccoby, E. E., & Mnookin, R. H. (1992). Dividing the Child: Social and Legal Dilemmas of Custody. Cambridge, MA: Harvard University Press. 2. Amato, P. R., Loomis, L. S., & Booth, A. (1995). Parental divorce, marital conflict, and offspring well-being during early adulthood. Social Forces, 73, 895-915. 3. See Amato P. R. (2001). Children of divorce in the 1990s: An update of the Amato and Keith (1991) meta-analysis. Journal of Family Psychology, 15(3), 355-370; Emery, R. E. (1999). Marriage, Divorce, and Children’s Adjustment (2nd ed.). Thousand Oaks, CA: Sage.; Hetherington, E. M. (1999). Coping with Divorce, Single Parenting, and Remarriage: A Risk and Resiliency Perspective. Mahwah, NJ: Lawrence Erlbaum Associates, Publishers.; and Kelly, J. B. (2000). Children’s adjustment in conflicted marriage and divorce: A decade review of research. Journal of the American Academy of Child and Adolescent Psychiatry, 39, 963-973. 4. Grych, G. H. & Fincham, F. D. (1990). Marital conflict and children’s adjustment: A cognitive-contextual framework. Psychological Bulletin, 108(2), 267-290. 5. Kelly, J. B. (2006). High-conflict parents: Who are they and what can we do? Presentation to the Texas Chapter of the Association of Family and Conciliation Courts 2006 Annual Statewide Conference. 6. Johnston, J.R., Campbell, L.E.G., & Tall, M.C. (1985). Impasses to the resolution of custody and visitation disputes. American Journal of Orthopsychiatry, 55, 112-129. 7.Id. 8.Id. 9.Id. 10. Tschann, J. Johnston, J.R., &. Wallerstein, J.S. (1989). Resources, Stressors, and Attachment as Predictors of Adult Adjustment after Divorce: A Longitudinal Study Journal of Marriage and the Family, Vol. 51, No. 4. pp. 1033-1046; For more information related to the origins of such conflict and how divorcing couples maintain such conflictual relations see Johnston, J. R. (2005). Clinical work with parents in entrenched custody disputes. In L. Gunsberg & P. Hymonwitz (Eds.0 A Handbook of Divorce and Custody (pp. 343-363). Hillsdale, New Jersey: The Analytic Press.; and Johnston, J. R., & Campbell, L.E.G. (1988). Impasses of Divorce: The Dynamics and Resolution of Family Conflict. New York: Free Press. 11. Kelly, J. B. (2000). Children’s adjustment in conflicted marriage and divorce: A decade review of research. Journal of the American Academy of Child and Adolescent Psychiatry, 39, 963-973. 12. Kramer, L. and Kowal, A. (1996, November). Long-term follow-up of a court-based intervention for divorcing parents. Paper presented at the meeting of the National Council of Family Relations, Kansas City, MO. 13. Kelly, J. B. (2002). Psychological and legal interventions for parents and children in custody and access disputes: Current research and practice. Virginia Journal of Social Policy and Law, 10, 129-163. 14. Stewart, R. (2001). The early identification and streaming of cases of high-conflict separation and divorce: A review. Ottawa: Department of Justice Canada. 2001-FCY-7E. 15.Id. 16. Kelly (2006), supra 17. Johnston, J. R. (2005). Clinical work with parents in entrenched custody disputes. In L. Gunsberg & P. Hymonwitz (Eds.0 A Handbook of Divorce and Custody (pp. 343-363). Hillsdale, New Jersey: The Analytic Press. 18. Kelly, J. B. (2000). Children’s adjustment in conflicted marriage and divorce: A decade review of research. Journal of the American Academy of Child and Adolescent Psychiatry, 39, 963-973. 19. Jones v. Abrams 35 S.W.3d 620 (Tex. 2000) 20. Association of Family and Conciliation Courts (2006). Model Standards of Practice for Child Custody Evaluation. Retrieved on February 15, 2008 from http://www.afccnet.org/pdfs/Model%20Stds%20Child%20Custody%20Eval%20Sept% 202006.pdf 21. see Tex.Fam.Code §§ 153.605 et seq. 22.Tex.Fam.Code §§ 6.603 & 153.0072 23. See Codes 3.04 and 3.05, American Psychological Association (2002). Ethical principles of psychologists and code of conduct. American Psychologist, 57, 1060-1073. 24. 22 Tex.AdminCode §465.18 b(5) 25. Johnston, J.R., & Campbell, L. E., G. (1986). Impasse-directed mediation with high-conflict families in custody disputes. Behavioral Sciences and the Law, 4(2), 217-241. 26.22 Tex.Admin.Code §465.18 b(3).